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Editors --- "Scott v Northern Territory of Australia - Case Summary" [2005] AUIndigLawRpr 23; (2005) 9(2) Australian Indigenous Law Reporter 43

Court and Tribunal Decisions - Australia

Scott v Northern Territory of Australia

Court of Appeal of the Northern Territory (Martin (BR) CJ, Mildren J and Priestley AJ)

22 February 2005

[2005] NTCA 1

Cross vesting — exhumation orders — body buried in Queensland — exhumation sought to allow autopsy by overseas pathologists — use of autopsy in civil proceedings — whether the Northern Territory Supreme Court has power to order exhumation of body in civil proceedings — whether similar power exists in Supreme Court of Queensland — whether Supreme Court of NT can order exhumation in respect of body interred in Queensland — whether power exists under cross-vesting legislation

Courts — federal jurisdiction — diversity jurisdiction — matter remitted to Supreme Court of NT by High Court — whether federal jurisdiction extends to order exhumation in Queensland

Facts:

On 5 July 1985 Douglas Bruce Scott died in Berrimah Prison. A forensic pathologist performed an autopsy on the body of the deceased on 5 July 1985 and the death was the subject of a Coronial Inquest in 1987. The Coronial Inquest found that the deceased died as a result of hanging and that he had committed suicide. The wife and son of the deceased (the plaintiffs) did not accept the finding of suicide and sought to prove that the deceased was murdered by four prison officers (the defendants).

The plaintiffs commenced an action against the defendants in the High Court of Australia for damages in tort arising out of the death of the deceased. In order to pursue this claim, the plaintiffs wish to have the remains of the deceased exhumed in order to conducted a further autopsy. The plaintiffs obtained an opinion from a committee of expert United States and United Kingdom pathologists which, in their opinion, supported the conclusion that a further autopsy would lead to further expert opinion on support of their claim that the deceased was murdered.

The High Court remitted the matter to the Supreme Court of the Northern Territory. The plaintiffs made an application in the Supreme Court of the Northern Territory to obtain an order for exhume the body of the Deceased, which was interred in Townsville, Queensland, and to conduct a second autopsy by a group of overseas pathologists of the plaintiffs’ choosing. This application was refused at first instance, and the plaintiffs appealed to the Court of Appeal.

Held, refusing the application on its merits:

1. The Supreme Court of the Northern Territory does not have inherent jurisdiction and power to order the exhumation of the body of a deceased which is not interred in the Northern Territory: [28] (per Martin (BR) CJ, Mildren J; Priestley AJ dissenting).

2. The Supreme Court of the Northern Territory does have jurisdiction and power to order the exhumation and re-autopsy of the remains of a deceased person interred in Queensland, by operation of s 9 of the Jurisdiction of Courts (Cross-Vesting) Act (NT) and s 4 of the Jurisdiction of the Courts (Cross-Vesting) Act 1987 (Qld): [52], [146].

Case Extract:

Mildren J (Martin (BR) CJ agreeing)

...

4. The issue on the application for leave to appeal is whether or not Bailey J was correct in determining that the Supreme Court had no jurisdiction to make an order that the body of Douglas Bruce Scott be exhumed in Townsville in the State of Queensland and be subjected to a second autopsy by a group of overseas pathologists of the plaintiffs’ choosing.

5. Briefly the history of the matter before Bailey J is that the plaintiffs commenced action against the defendants in the High Court of Australia for damages in tort arising out of the death of the late Douglas Bruce Scott, the former husband of the plaintiff Letty Marie Scott and the father of the plaintiff Nathan William Scott. The late Douglas Bruce Scott died in Berrimah Prison on 5 July 1985. The plaintiffs claim that the deceased was murdered by the defendants, Medley, Robertson and Lawson, who were prison officers at the prison at the relevant time. Only the first, second and fourth defendants have been served with the writ and statement of claim. The whereabouts of the third defendant, Robertson, are unknown.

6. On 17 December 2002, McHugh J remitted the matter to this Court and granted liberty to the plaintiffs to file and serve any amended statement of claim on or before 31 January 2003. McHugh J said that the plaintiffs’ writ and statement of claim are ‘far from clear, they do not specify the true nature of the plaintiffs’ claims and will need amendment if the present action is to proceed’.

...

8. The applicants filed an amended statement of claim on 20 January 2003. By summons filed on 8 October 2003 the applicants sought various orders including an order that the body of the deceased be exhumed and subjected to a second autopsy by pathologists of the applicants’ choosing.

...

27. It is clear from the authorities ... that this Court does have jurisdiction at common law to order the exhumation of a body for the purposes of forensic examination of the remains whenever it is necessary to do so for the furtherance of the administration of justice. I see no reason why the jurisdiction should be confined to cases falling within the Court’s criminal jurisdiction.

28. Accordingly, I consider this Court does have jurisdiction and power in an appropriate case to order the exhumation of the remains of a deceased person. However, in my opinion the power of the Court is limited to those persons who are buried in the Northern Territory unless there is some statutory power enabling the Court to exercise jurisdiction in respect of a body which is not buried in the Northern Territory.

...

31. I turn now to consider whether or not the Supreme Court of the Northern Territory has jurisdiction and power in the context of [this case] ... to order the exhumation of the remains of the deceased by operation of the provisions of the Jurisdiction of Courts (Cross-vesting) Acts of the Northern Territory and the State of Queensland.

32. It was submitted by the applicants that this Court had jurisdiction by virtue of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act (Qld) and s 9(a) of the Jurisdiction of Courts (Cross-vesting) Act (NT). It was further submitted that this jurisdiction existed independently of any matter being transferred from the Supreme Court of Queensland vide s 5 of the Cross-vesting Acts. Counsel for the Attorney-General for Queensland submitted that the power and jurisdiction derived from s 4(1) was contingent upon an existing matter being first transferred from the Supreme Court of Queensland. I am of the view that the applicants’ contentions are correct.

...

41. It was submitted by Mr Grant that in order for the Supreme Court of the Northern Territory to exercise the cross-vested jurisdiction of the Supreme Court of Queensland, there must be a ‘matter’ in which the authority to adjudicate in relation to either the parties or the subject matter is derived from Queensland laws. It was submitted that the term ‘matter’ as it appears in the cross-vested legislation should be given its Constitutional (in the generic sense) meaning, that is, that ‘matter’ comprises the substantive subject matter for determination in a legal proceeding involving some immediate right, duty or liability to be established by the determination of the Court: see Re Judiciary Act 1903–1920; Re Navigation Act 1912–1920 [1921] HCA 20; (1921) 29 CLR 257.

...

47. ... [I]n my opinion the ‘matter’ in the referred proceedings is whether or not the Court should order that the body of the deceased should be exhumed, etc. As the deceased is buried in the State of Queensland the question of whether or not the Supreme Court of Queensland has power to make such an order is to be determined by the law of the State of Queensland.

...

49. Our attention was also drawn to s 27 of the Transplantation and Anatomy Act 1979 (Qld) which in certain circumstances empowers the senior available next of kin of a deceased person to authorise a post-mortem examination of the body of the deceased. Section 28(2) precludes the senior available next of kin authorising a port-mortem in certain circumstances, but there is no evidence that these circumstances apply in this case. However s 30(3) of that Act provides that a post-mortem examination under the Act shall be made by a ‘medical practitioner in a place approved by the chief health officer’. It was submitted that ‘medical practitioner’ means a person who is registered under the Medical Practitioners Registration Act 2001 (Qld). Finally our attention was drawn to s 236 of the Criminal Code (Qld) which makes the improper dealing with human remains an offence and contains a reverse onus of proof in respect to the improper dealing with corpses by placing an obligation on a person to establish the lawful justification or excuse for improperly interfering with human remains.

50. It was submitted that the above legislation ‘covers the field with respect to exhumations and autopsies in Queensland’. We were referred to the decision of the Full Court of the Supreme Court of South Australia in Haydon v Chivell [1999] SASC 336; BC9904645. However the legislation in South Australia is significantly different from that of Queensland, and, in any event, the question of the jurisdiction of the Supreme Court of South Australia, as (opposed to the powers of the Coroner) was not in issue. In England it has been held that the statutory powers granted to coroners to order a post-mortem are not exclusive: Reg v H M Coroner for Greater London (Southern District), Ex parte Ridley (1985) 1 WLR 1347. Having regard to the authorities to which I have previously referred, I consider that the Supreme Court of Queensland has jurisdiction at common law to order the exhumation of the remains of the deceased. The jurisdiction of that Court is derived from that of the Supreme Court of New South Wales: see Supreme Court Act 1867 (Qld) s 34. I do not accept the argument of counsel for the Attorney-General for the State of Queensland that the various Queensland Acts to which he has referred provide a code which has somehow ousted the common law jurisdiction of the court. There is nothing in the legislation of Queensland to which we were referred which abrogated the common law powers of the Queensland Supreme Court either directly or by necessary implication. Therefore pursuant to s 4(1) of the Queensland Act and s 9(a) of the Northern Territory Act this Court has jurisdiction to exercise the common law jurisdiction of the Supreme Court of Queensland in a proper case.

51. I consider that the fact the order is sought to be made as a means of gathering further evidence, does not preclude the exercise of jurisdiction. For the reasons discussed in relation to what are State ‘matters’, I consider that the fact that the order sought is merely in aid of the discovery of facts relevant to the ultimate question to be decided by the Court is not in itself a reason for denying jurisdiction.

...

52. I have no doubt that the Supreme Court does have power by virtue of the operation of the cross-vesting legislation to order a further autopsy in relation to the body of the deceased if such were necessary. The fact that there has already been an autopsy does not prevent the Court from exercising jurisdiction in a proper case to order a further autopsy.

53. However, before such powers are exercised, careful consideration must be given to a number of matters including whether there are facts warranting the exercise of the power, and if so, to whom the order is to be directed. There is no point in directing the order to the Northern Territory Coroner as there are no provisions in the respective Coroners Acts of the State of Queensland and the Northern Territory enabling a Coroner from one jurisdiction to request assistance from the Coroner of another. In my opinion the order should be directed at the relevant Queensland authorities and also to the trustees of the cemetery. In my view it would not be possible for an order to be made permitting persons who are not registered medical practitioners in Queensland to conduct any re-autopsy. There is also a question as to who should bear the costs of the exhumation, autopsy and reinterment of the body which will have to be considered but as that matter has not been agitated in these proceedings, I decline to comment on that matter further.

54. There is also a question of the need to give notice of the proposed orders before they are made to the appropriate authorities in Queensland including the trustees of the cemetery, to give them an opportunity to be heard, particularly on who should bear the costs. I do not think it is necessary in these proceedings to have the relevant Queensland authorities or the trustees of the cemetery to be joined as parties as the only relief being sought is of an interlocutory nature. It is now common practice for courts to issue orders against persons who are not parties to actions in relation to discovery: see for instance Rule 229 of the Uniform Civil Procedure Rules 1999 (Qld) which permits delivery of interrogatories to a non-party in certain circumstances (and see Pacific Century Production Pty Ltd v Netafim Australia Pty Ltd [2004] QSC 63; (2004) 2 Qd.R 422); and in the case of non-party discovery see Order 32 of the Supreme Court Rules (NT)). In my opinion an order of this nature is akin to an order for discovery against a non-party: see also Haydon v Chivell [1999] HCA 39; (1995) 165 ALR 1 at 3 per Gaudron J.

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59. It could not be said that the appellants have long purses, as they are indigent. By leave of the Court they have been allowed to present their case with the assistance of a law student, whose assistance to the Court is much appreciated. Whether the appellants have a litigious disposition is quite another matter indeed. Nevertheless, no argument was presented to the Court by Mr Grant who appeared for the first, second and fourth respondents, or by Mr Thomas who appeared for the Queensland Attorney-General (intervening) opposing the grant of an extension of time or the granting of leave, and I turn now to consider the appeal on its merits.

...

60. Mr Grant raised a number of preliminary points that the application in respect of which the appeal is brought is framed in a defective fashion. The relevant application made to the Court below was contained in par 8 of the summons of 8 October 2003 which is in the following terms:

That this Court order pursuant to its Federal Jurisdiction in this matter that an exhumation and reautopsy be conducted on the remains of Douglas Bruce Scott at Townsville Queensland by the United States and United Kingdom Forensic Investigative Committee into the death of Douglas Bruce Scott, consisting of Dr Henry C Lee, Dr Michael N Baden, Dr Cyril H Wecht, Dr Peter Dean and their assistants.

61. Mr Grant pointed out a number of difficulties with the proposed order sought in that the order is not directed to any person so far as the exhumation is concerned; that whether the appropriate person be the relevant Minister or the trustees of the Townsville Cemetery they are not respondents to the application; and so far as the Forensic Investigative Committee referred in par 8 of the summons is concerned, it is common ground that the Forensic Experts named therein have each sought a fee of US$10,000 with first class travel and accommodation expenses for the purpose of conducting the further post-mortem examination; that their attendance is contingent upon that payment; and that the applicants are without the means to meet these expenses. Moreover, the proposed order sought made no provision for the storage of the body following its exhumation; nor does it specify the manner with which the body is to be dealt with following the examination.

62. In these circumstances although jurisdiction did exist to make an order for exhumation under the Cross-vesting Acts, for the reasons already given, in my opinion, the failure to serve upon the appropriate authorities notice of the application was a sufficient reason to refuse the order sought. Furthermore, for the reasons already given, no order could be made authorising an autopsy by a person who is not a registered medical practitioner in Queensland and there is no evidence that any members of the Forensic Investigative Committee were so registered. On those grounds alone, I think that the application ought to have been refused and, that being so, the application for an extension of time and for leave to appeal must be dismissed. ...